Medicine as a Right

I’ve always been partial to the idea that healthcare should be considered a human right. I think we all realize, but as a doctor it is particularly clear to me, that without health nothing matters. It doesn’t much matter if I have a right to assemble if I can’t get out of bed without debilitating pain. My idealism has always gotten a little bogged down, however, when I think about what exactly is the healthcare people have a right to? This piece by Dr. Jay Joshi adds ever further complexity.

Adam Cifu, MD

“I distrust the medical facts”, wrote American philosopher Ralph Waldo Emerson. No, he wasn’t anti-science as we understand the term today. He was against what he called the materialists. Materialists believed medicine could be reduced to biological functions and that diseases were nothing more than a collection of symptoms. Like what Emerson thought, I don’t think that medicine can be so discretely defined. It requires an air of uncertainty. That’s why we cannot consider medicine a right.

I would love to be able to state unequivocally that medical care is a right. But when we break it down granularly and look at specific treatments or issues with access to care, the framing of those individual components as a right falls apart. Medicine is complex. Any attempt to define or to characterize specific aspects of it concretely, the way rights are defined, creates cognitive dissonance.

Think about vaccines. Most in medicine would consider vaccines as having a net benefit and therefore would recommend it to their patients. However, the marginal benefit of vaccines changes depending on the percent of the population that receives it. If a portion of the population believes vaccines are risky and chooses not to take it, then the overall benefits conferred are marginally lower.

To further complicate things, when you receive a vaccine, compared to others in a population, determines its relative benefits. If you’re among the first to receive it, you benefit enormously. The longer you wait, the less individual value you get. Over time, the benefit shifts from the individual to society. The last person to get vaccinated receives no personal benefit and gives no benefit to society.

Even the legal system is unclear on how rights for vaccines should be applied. In 1905, the Supreme Court ruled that the city of Cambridge, Massachusetts could penalize residents who refused smallpox vaccines. Today, the Supreme Court issues rulings and injunctions to the opposite effect. It repeatedly struck down pandemic era vaccine mandates whenever the issue appeared before them, arguing logic contrary to what the court decreed over a century ago. Apparently, healthcare that was considered a right back then is now not.

When we reduce medicine to rights, we oversimplify the complexity of medicine into legal arguments that are often contradictory. This isn’t unique to vaccines. We simplified the legality of abortion into a rubric of weeks. Now we have federal courts setting case law based on an arbitrary duration of time.

Abortion is as complex as it is controversial. It makes no sense to determine the legality of abortion in weeks and fit the same standard on all patients. No two cases are alike. An impoverished woman from rural Gifford, Florida might seek an abortion for entirely different reasons than an affluent woman in Coral Gables, Florida. More restrictive abortion laws will lead to greater socioeconomic burdens for the former than for the latter.

Implicitly we know this. Yet we still argue over abortion as a right measured in weeks. Perhaps we feel we need to. We don’t. Medicine doesn’t have to be defined in terms of rights nor does it need to be defined so concretely. It’s time we look at medicine the way it was originally intended to be seen.

It’s not surprising that the progenitor of modern American medicine, Dr. William Osler, asked his medical students to read Emerson. They both saw medicine as an experience where knowledge is gleaned through direct interactions with the patient. Osler called it bedside medicine. Emerson phrased it as, “every man is a sliding scale”, a fluctuating array of symptoms and perceptions.

For these two, medicine has an element of the unknown. Good physicians recognize this uncertainty and chart the best path forward regardless, balancing what they know with what remains ambiguous. There is no one right or wrong decision. Rather, good clinical decision-makers use uncertainty to weigh the relative benefits for each patient.

We learn this early in our medical training and then quickly forget it. Soon thereafter, we relegate Emerson to the history books and Osler to the medical schools. We then praise their virtues while lying in bed with their intellectual adversaries, the materialists. The irony is palpable, yet we remain dull to its touch. Perhaps we lost that sensitivity when we began clamoring over rights in medicine.

Now we think about nearly every issue as a right. But in thinking about medicine as a right, we give in to the materialists. We characterize it far more definitively than it should be and ignore its inherent uncertainty. In today’s litigious world, this means we see it through an inappropriately legal veneer. We start with a preconceived belief about a health issue and retroactively apply some right to justify the stance taken. We then conflate the relationship between rights and health to be the same as the relationship between rights and justice. This only works for well-defined behaviors that are simple and generally agreed upon. When we couple medicine into that pairing, the relationship makes less sense.

The theologian Thomas Aquinas explained it best when he wrote about rights and justice. He tried to equate the two with virtue, but couldn’t. He realized that virtue has an unknown aspect to it, which he ascribed to God, or the divine. He reasoned the administration of justice cannot be fully virtuous because we can never know how virtuous a person is or intends to be – just like we can never know his or her complete thoughts.

A few centuries later, Immanuel Kant, a more secular philosopher, would come to a similar conclusion in his analysis of truth. He argued that we see truth in two ways – through logic and through the transcendental, or what he called a divine experience.

When we have evidence to support what we perceive to be true, we call it logical truth. When we lack evidence, yet still believe something to be true, we call it transcendental truth. The full truth, therefore, can only be understood through experience because each person decides independently what assumptions to believe, regardless of the evidence available.

When we apply this thinking to medicine, we see why the concept of rights doesn’t work. We’re simplifying a relationship that is far more complex and uncertain than we would like to think. We distort medicine into something it’s not. It reduces into nothing more than a mechanism of control instead of a way to heal.

Jay K Joshi, MD MBA, is a practicing physician and entrepreneur in Northwest Indiana. His book, Burden of Pain, identifies opioid health policies that can bridge the divide between the legal and clinical worlds.